## u.s. DEPARTMENT OF TRANSPORTATION 

# EI 

# vED OFFICEOFHEARINGS 

# REG FEDERALAVIATIONADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. AIRBORNE MAINTENANCE AND ENGINEERING SERVICES, Respondent. 

## NOV 212014 

## HEARING DOCKET

DocketNo. FAA-2013-0291 FAA Case No. 2011S0290032
Judge Sullivan

COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUSPENSION OF LITIGATIONDATES Respondent and the FAA were set to take several depositions in Orlando, Florida during the week ofOctober 27, 2014. Due to severe medical issues and complications experienced by the wife ofInspector Lipinski, one ofthe deponents, he was unable to attend a deposition that week, or the week after, 1 which was the deadline for concluding depositions. Further, as indicated inthe e-mails attached by Respondent to its Motion, the undersigned is unavailable for
an out-of-town deposition until early January? Accordingly, the Respondent's Motion for the Suspension ofLitigation Deadlines is well-taken, and the FAA concurs withthat request.

1During the week after, the FAA had agreed to make another FAA Inspector available for deposition, but Respondenthad never indicated whether it actually wanted to take this deposition. During discussions in Orlando, opposing counsel indicated thathe didnot know yet, because he wanted to take Inspector Lipinski's deposition before 2 Opposing counsel has not provided any information as to his availability for the remainder ofthis year, or in January 2015. IHowever, Respondent's motion is also replete with anumber ofinaccurate and seemingly irrelevant commentaries on the prior and future course ofthis litigation. For example, it appears that more than once Respondent issued deposition notices when the undersigned attorney was out ofthe office and then issued them without having coordinated prior availability, see, e.g., Motion at 3, n.2. More importantly, Respondent's argument is irrelevant to whether a continuance is appropriate. Also, Respondent's accompanying assertion that the FAA has been "lackadaisical" inmeeting deadlines or is "slow walking" the case is without foundation3 Other than responding to the above, the FAA will not clutter the record by responding in detail to other inaccurate and irrelevant comment made by Respondent. Suffice it to say that Respondent has "unclean hands" regarding the processing ofthis matter. Respondent's counsel has cordoned off entire months ofthe litigation calendar because he may have a trial in another case, and has attempted to force a witness to travel for a deposition when the reason for missing a scheduled deposition was a medical emergency. Therefore this particular part ofRespondent's argument is notmade ingood faith. Finally, the FAA must address Respondent's request that the suspension of litigation dates be partial. In particular, Respondent requests that it have the opportunity to file a motion for summary judgment or motion to dismiss for insufficiency while litigation is otherwise suspended. Respondent is, ofcourse, entitled to abandon its desire to depose Inspector Lipinski and request that this case proceed to judgment motions, but Respondent cam1ot have it both ways. Pursuantto 14 C.P.R. §13.218(£)(5): "Motion for decision. A party may make a motion for decision, regarding all or any part ofthe proceedings, at any time before the administrative lawjudge has issued an initial decision in the proceedings. The administrative lawjudge shall

3 It is unclear whatmotive the Respondent ascribes to this alleged "slow walk" ofthe litigation, and Respondent does not explainhowbelieves thatthe FAA is simultaneouslyboth pursuing a case againstRespondent as amatter ofbias and yet also apparently notpursuing ithard enough. 2grant a party's motion for decision if the pleadings, depositions, answers to interrogatories, admissions, matters that the administrative law judge has officially noticed, or evidence introduced during the hearing showthat there is no genuine issue ofmaterial fact and thatthe party making the motion is entitled to a decision as a matter of law. The party making the motion for decision has the burden ofshowing that there is no genuine issue ofmaterial fact disputed by the parties."
At this stage in this proceeding, with discovery incomplete, and with general issues ofmaterial fact being disputed by Respondent, it would be inappropriate to grant any dispositive motion in Respondent's favor. 4

WHEREFORE, the FAA respectfully requests that the Judge grant an extension ofthe fact witness deposition period, and instruct the parties tojointly submit anewproposed litigation schedule for this case. Respectfully submittedthis 20thday ofNovember, 2014.

# ~UJ{ 

# ?2- CHRJSTOPHER STEVENSON Attorney Office ofthe Regional Counsel

4 Because Respondent already filed an Answer (on July 18, 2013), a Motion to Dismiss for Insufficiency should be dismissed on procedural grounds. See 14 C.F.R. §13.218(1)(1) ("A respondentmay file a motion to dismiss the complaint for insufficiency insteadoffiling an answer.") 3CERTIFICATE OF SERVICE I hereby certify that the foregoing Complainant's Response to Respondent's Motion for Suspension ofLitigation Dates was sent: Original and 1copyvia Federal Express & Certified Mailto: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 I copyvia Federal Express, CertifiedMail and Facsimileto: The Honorable 

### I.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, SE (E11-310) Washington, DC 20590 facsimile: (202) 366-7536 Robert P. Silverberg, Esq. 1101 30th Street, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

# ~A~ Legal Assistant Office ofthe Regional Counsel 

### NOV 20 Dated



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